In today’s fashion and design landscape, copying rarely looks like counterfeiting.  Instead, copying often appears as something more ambiguous – and more widespread: the “dupe.”  Fast fashion and the popularity of the “quiet luxury” aesthetic, along with platforms like TikTok, have helped popularize dupes.  These products closely imitate the look and feel of branded goods without using source-identifying marks.  Particularly for companies in fashion and design, dupes present a growing commercial threat, which trade dress protection is increasingly ill-equipped to address.

At the same time, courts have continued to refine and, in some ways, constrain trade dress protection through the functionality doctrine.  As articulated in Christian Louboutin S.A. v. Yves Saint Laurent America Holding, Inc. and its progeny, functionality – particularly aesthetic functionality – has emerged as a powerful limitation on claims that seek to monopolize product appearance.

Considered together, trade dress is increasingly ineffective as a primary enforcement tool against fast-moving aesthetic copying.  Instead, trade dress should be seen as a narrower, potentially weaker form of protection that is best paired with other intellectual property rights to protect a company’s designs.

The Rise of Dupe Culture

“Dupe culture” occupies a middle ground between lawful competition and unlawful copying.  Unlike counterfeits, dupes do not attempt to pass themselves off as the original brand.  Instead, they replicate desirable design elements – color schemes, silhouettes, materials, or overall aesthetic – while relying on their own branding.

Social media has accelerated this phenomenon.  Viral “get the look for less” content reframes copying as admirable consumer savvy rather than infringement.  For emerging brands, this creates a tricky situation: by the time a design gains traction and recognition, lower-cost competitors may already be saturating the market with similar-looking products.

From a legal perspective, dupes often avoid clear trademark infringement because they do not use confusingly similar marks.  This leaves trade dress protection as the most obvious option.  However, companies face another significant challenge: functionality.

Functionality as a Gatekeeper

Under the Lanham Act, trade dress protection is subject to an important limitation: it cannot extend to functional features.  This includes both utilitarian functionality (features essential to the use or purpose of the product) and the more hotly-debated aesthetic functionality (features whose exclusive use would put competitors at a significant non-reputation-related disadvantage).

In the Louboutin case, the Second Circuit recognized trademark protection for Louboutin’s red lacquered outsole, but only in a narrowly defined context: where the red sole contrasts with the remainder of the shoe.  The court declined to grant broader rights that would have prevented competitors from using red soles altogether, emphasizing the competitive importance of color in fashion.

The takeaway from Louboutin is not just that trade dress can be protected, but that such protection is often conditional and highly fact-specific.  Courts are increasingly reluctant to grant rights that could be seen as removing commonly used aesthetic features from the competitive landscape.

Dupes Meet Functionality

Dupe culture and the functionality doctrine intersect in a way that weakens trade dress claims.  Dupes typically copy features that are:

• Visually appealing
• On-trend
• Widely recognized within a product category

These same characteristics make it more likely that a court will find these features aesthetically functional, and therefore not protected by trade dress.  If a certain color, shape, or design element is popular or expected in a market, exclusive rights over that feature may be seen as harmful to competition.

This presents a paradox for brand owners: the more successful and influential a design becomes, the more likely it is to be considered functionally necessary for competition.

In fast-moving industries like fashion and furniture design, where trends change quickly and consumers expect certain visual norms, courts may be particularly skeptical of broad trade dress claims.  The result is a narrowing field of protectable subject matter, which may often exclude the very design elements most likely to be copied.

Strategic Playbook for Companies

Given these limitations, companies should revise their approach to trade dress and dupe enforcement.  Several practical steps can enhance both protectability and enforcement results.

1. Define Trade Dress Narrowly, and Early

Broad claims covering product design elements are vulnerable to functionality challenges.  Companies should identify specific, non-functional features that can be clearly defined.

This should start during product development, not after copying occurs.  Early definition allows for more consistent use and stronger evidentiary support.

2. Proactively Develop Secondary Meaning

Secondary meaning remains essential for most product-design trade dress.  Companies should focus on marketing strategies that explicitly link design features to brand identity.  This can include:

• Consistent visual presentation across channels
• Advertising that highlights distinctive design elements
• Strategic use of influencers and social media mentions, particularly on platforms like TikTok

In the digital space, metrics like engagement and recognition may play an increasing role in establishing secondary meaning, along with traditional survey evidence.

3. Layer Intellectual Property Protection

Trade dress should not be the sole line of defense against dupes.  A layered approach is more effective:

• Design patents offer strong, time-limited protection against substantially similar designs and work well for early-stage products
• Trademarks (logos, labels, and word marks) remain critical for preventing source confusion
• Copyright may apply to certain artistic elements, particularly in jewelry or decorative designs

Companies using a combination of these tools can lessen the shortcomings of any single category.

4. Prioritize Speed and Market Positioning

In markets where copying is inevitable, speed can be as important as exclusivity.  Companies should focus on:

• Rapid product cycles
• Strong brand differentiation
• Direct engagement with consumers

A well-developed brand can retain value even amid widespread imitation.

5. Document Non-Functionality

Companies should keep records showing that design choices were driven by branding considerations rather than functional necessity.  Relevant evidence may include:

• Alternative designs considered and rejected
• Design briefs emphasizing aesthetic distinctiveness
• Marketing materials linking features to brand identity

Such documentation can be critical in countering functionality defenses.

Wrap-up

Together, the evolution of dupe culture and the functionality doctrine has changed the landscape of trade dress enforcement.  In design-focused industries, courts are increasingly cautious about granting exclusive rights over product appearance, particularly where doing so could limit competition.

For companies in such industries, a disciplined and strategic approach from the start will likely yield benefits down the road.  Trade dress remains a valuable tool, but one that works best when integrated into a broader intellectual property strategy.  In this age of dupes, the question is no longer whether a design can be copied, but whether it can be protected in a way that withstands scrutiny over functionality.

Contact Conley Rose to discuss how your organization can implement strategies to adequately protect its designs in this increasingly fast-paced landscape.